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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
APPEALLATE JURISDICTION
NUKU'ALOFA REGISTRY
AM 4 of 2015
BETWEEN:
SAMIUELA 'AKILISI POHIVA
Appellant
First Respondent
TUITA, WILLIAM CLIVE EDWARDS, FRIENDLY ISLANDS SATELLITE
Second Respondents
Counsel : Dr R Harrison QC SC for the appellant.
Mr. S Stanton SC and Mr. W Edwards for the second respondent.
Written submission from Mr. 'A Kefu SC to assist the Court.
Hearing : 9 June 2015
RULING
[1] The issue in this case is whether a Magistrate has the power to award costs against a private informant when exercising the preliminary inquiry jurisdiction under Part III, section 32 of the Magistrate's Courts Act.
THE FACTS
[2] A detailed statement of the facts can be obtained from the ruling of Scott CJ dated 17 January 2014 in the proceeding between the same parties under AM 20 of 2013. The facts relevant to this appeal are as set out below.
[3] Mr. Pohiva commenced private criminal prosecutions against the second respondents (the respondents) in the Magistrate's Court on 12 February 2013. The charges alleged serious dishonesty. The Magistrate conducted a preliminary inquiry (also known as a committal hearing) under section 32 of the Magistrate's Courts Act (as enacted by section 9 of the Magistrate's Court (Amendment) Act 2012). He found that a sufficient case had not been made out to put the respondents on trial before the Supreme Court. He discharged them. Mr. Pohiva appealed the discharge to the Supreme Court under AM 20 of 2013. His appeal was dismissed by Scott CJ on 17 January 2014.
[4] The respondents applied to the Magistrate for the costs of the preliminary inquiry. On 16 July 2014 the Magistrate awarded them costs. In a written ruling of 10 September 2014 he assessed the quantum of the costs at T$22,000.
[5] Mr. Pohiva initially sought judicial review of the Magistrate's ruling on costs under CV 75 of 2014. When that matter came before Scott CJ it
was agreed that Mr. Pohiva should have proceeded by way of an appeal. An appeal was filed out of time by leave and it is the appeal that is the subject of this ruling. Costs in CV 75 of 2014 were reserved pending the hearing of this appeal.
[6] Mr. Pohiva challenges the power of the Magistrate to award costs of the preliminary inquiry. He also challenges the award that was made on its merits (assuming power to award costs exists). I am to determine whether the Magistrate had the power to award costs as a discrete issue. Should it be necessary, I am to allow the parties to present further evidence and submissions on the other matters raised by Mr. Pohiva's appeal.
THE MAGISTRATE'S RULING
[7] In the Magistrate's ruling he does not specifically identify the source of his power to award costs. He states, ―upon the arguments on the cost submissions of the defendants, I will award them their cost‖. The Magistrate ought to have both identified the source of his power to award costs and given his reasons for finding the respondents' arguments meritorious. A Judge's duty to give reasons is a requirement of due process and therefore of justice. The parties are entitled to know why the Judge arrived at the result that he did. In the case of the losing party, the reasons of the Judge allow him to assess the merits of an appeal. It is also important to a Court hearing
the case on appeal that reasons are given. It is from those reasons that it will usually make its assessment of whether the Judge fell into error. Finally, the requirement to give reasons concentrates the mind of the Judge and a decision is much more likely to be soundly based than if no reasons are given.
[8] The submissions for the respondents before the Magistrate contained no analysis of the provisions of the Magistrate's Courts Act as a source of the Court's jurisdiction or powers (either express or implied) to award costs. The respondents' sought to invoke the Magistrate's Court's power to control and avoid abuse of its own processes. It was submitted for the respondents that a costs award was needed to ―redress the wrong done‖ to the respondents by the laying of the charges against them.
THE ARGUMENTS ON THIS APPEAL
The appellant's case
[9] The appellant's starting point was that the Magistrate's Court is a creature of statute and its jurisdiction is conferred on it by statute. There is no express power in the Magistrate's Courts Act to award costs in a preliminary inquiry. In the absence of an express power to award costs the appellant contends that the question to be determined is whether the Magistrate had an implied power to do so. It was submitted that this issue has to be considered in its statutory context but also in the broader context of customary and common law criminal procedure.
[10] Dr Harrison argued that the fact that there is no express power ‗speaks volumes' when viewed against the express conferral of power to award costs in other areas of the Magistrate's Court's jurisdiction and the common law principle that the Crown in criminal cases neither receives nor pays costs. He submitted that this ―pre-existing long standing rule of the common law‖ pre-dated the Magistrate's Courts Act and it would require express wording or clear implication to confer on the Magistrate's Court a general power to award costs in criminal cases.
[11] Dr Harrison also submitted that the argument advanced for the respondents, that a power to award costs should be implied, ignored the full ramifications of that position, which included that such power, if brought into being, would have to be reciprocal (that is, it would have to allow for costs against the Crown and accused, including in proceedings for committal for trial). He said it would also require the implication of powers to tax costs, enforce the payment of costs and to appeal from costs awards. To the extent that the respondents wanted to limit the Magistrate's power, so that costs could be awarded but only against a private prosecutor and not the Crown, Dr Harrison argued that was an illogical stance.
The respondents' case
[12] The respondents argue that the lack of an express power to award costs is of no moment. They submit that the Magistrate's Court has the power to award costs in committal proceedings either as the exercise of its inherent powers, which are necessary to enable it to carry out its functions effectively, or as a matter of necessary implication from the Court's express powers, particularly those contained in sections 8(c), 11, 24(9) and 32 of the Magistrate's Courts Act.
[13] In both his written and oral submissions Mr. Stanton focused on the status of Mr. Pohiva as a private prosecutor who had brought the prosecutions against the respondents as a ‗person aggrieved' in reliance upon section 197 Criminal Offences Act (as amended by No 20 of 2007). He said that the appellant's arguments failed to address the significance of private prosecutions which do not come within the conventional category of proceedings of a criminal nature and, in particular, could not be equated with proceedings brought by the Crown. He submitted that prior to the 2007 amendment of section 197 there was no right to bring private prosecutions in Tonga. The amendment, he said, allowed private litigants to bring criminal cases, and, as a result, the rules in relation to costs in criminal cases were displaced.
[14] Mr. Stanton referred me to a number of cases which he argued supported the view that there is no rationale for a prohibition on costs awards in private prosecutions. He accepted that in all of the cases cited there was an express statutory grant of power to award costs, which is not the case here.[1]
Counsel assisting the Court
[15] In submissions filed to assist the Court, Mr. Kefu also submitted that the Magistrate had implied power to make an order of costs against an unsuccessful private prosecutor at the preliminary inquiry stage. He appeared to accept that this meant that costs could also be awarded against the Crown but considered that would only rarely be appropriate in an unsuccessful public prosecution. Mr. Kefu argued that the circumstances of public and private prosecutions are different because public prosecutors have a public duty to prosecute on behalf of the Crown in the public interest and are bound by a code of conduct and professional standards that do not apply to private prosecutors.
[16] Mr. Kefu submitted that, to ensure the due administration of justice, the Magistrate's Court should be held to have an implied power from its express power to ‗hear and determine' a preliminary inquiry, to award costs against an unsuccessful private prosecutor. I note that it is section 11(1) that refers to the Magistrate's Court having jurisdiction to ‗hear and determine' criminal cases. This is not the language of section 32, which is significant for reasons I shall come to.
[17] Mr. Kefu also submitted that the interests of justice supported the implication of a power to award costs to allow a successful defendant to recoup the costs that he has been forced to incur.
DISCUSSION
The test for implication of a power
[18] The respondents argue that the power of the Magistrate to award costs arises by ‗necessary implication' from its statutory jurisdiction. The appellant submits that the test for the implication of powers in the case of a Court of limited statutory jurisdiction is a test of ―necessary implication derived by way of interpretation of the statute in question‖. Dr Harrison noted that in real terms there was probably little difference in the positions contended for by Counsel.
[19] The legal meaning of a statute (which is not necessarily the same as its grammatical meaning) can be determined from the express words and by implication. In my view, implications may arise because they are directly suggested by the express words that appear in the statute or because they are necessary and proper as being indirectly suggested by principles of interpretation and law that are not displaced by the words expressed.[2] The role of the Court in a case like this, where there are two competing legal meanings contended for, is to
weigh competing interpretative factors and determine which is, on balance, the correct interpretation.
The words of the Act
[20] The starting point is the words of the Magistrate's Courts Act. Relevantly for present purposes, the Magistrate's Courts Act confers jurisdiction upon the Magistrate's Court over summary criminal trials (Part II), preliminary inquiries for offences triable in the Supreme
Court (Part III)[3] and civil cases (Part V). I set out below sections 8(c), 11(1), 24(9) and 32 of the Magistrates Courts Act which are the sections that were the main focus of Counsels' submissions. Section 8(c) appears in Part I of the Act and is a provision of general application. Sections 11 and 24 appear in Part II and therefore relate to the Magistrate's Court's summary criminal jurisdiction. Section 32 is in Part III which deals with the Magistrate's Court's preliminary inquiry jurisdiction. The sections provide:
8 General powers and jurisdiction
Every magistrate shall have jurisdiction-
(c) to investigate all charges of criminal offences which he is not empowered to try and to discharge the accused or commit him for trial before the Supreme Court.
11 Criminal jurisdiction
(1) The Magistrate's Court has jurisdiction to hear and determine criminal cases which the Court is empowered to hear and determine by this or any other Act.
24 Hearing of case where both parties appear
(9) At the conclusion of the case the Magistrate shall either at the same or at an adjourned sitting of the Court give his decision by either dismissing the complaint or convicting the defendant and making such order against him as the justice of the case requires.
32 Committal hearings
(1) If a person is accused of having committed an offence which is triable only in the Supreme Court (except by operation of section 35) a Magistrate shall hold a preliminary inquiry in the Magistrate's Court without the calling of witnesses.
(2) The Magistrate shall notify the prosecutor and the accused of the date on which the preliminary inquiry shall be held and shall require the attendance of the accused —
(a) by issuing a summons; or
(b) if it appears to the Magistrate, from evidence on oath, that the person is likely to abscond – by issuing a warrant.
(3) For every preliminary inquiry the prosecutor shall lodge
with the Magistrate, at least 5 days before the date thereof, 2 sets of documents each consisting of one copy of a fair summary of the statements of the prosecution witnesses, one copy of the list of exhibits he proposes to produce and one copy of any documentary exhibits he proposed to produce.
(4) At the preliminary inquiry the Magistrate shall —
(a) cause to be handed to the accused in open Court, the accused's set of documents consisting of one summary of the statements of the prosecution witnesses, one copy of the list of exhibits, and one copy of the documentary exhibits; and
(b) endorse on the remaining copy that the accused has received his set of documents; and
(c) if he considers that the documents disclose that a sufficient case has been made out to put the accused upon his trial before the Supreme Court, commit the accused to the Supreme Court for trial in custody or on bail as appropriate, and forward the remaining set of documents together with a record of the proceedings in Form 21 in the Schedule hereto to the Registrar of the Supreme Court; or
(d) if he considers that the documents do not disclose that a sufficient case has been made out to put the accused upon his trial before the Supreme Court, shall discharge him.
[21] Section 8(c) (which as I have said is a provision of general application) confers on a Magistrate jurisdiction to investigate all charges of criminal offences which he is not empowered to try, and to discharge the accused or commit him for trial before the Supreme Court. There is no reference to any power to award costs or of any ancillary powers that might be exercised upon discharging or committing the accused for trial.
[22] Despite the submissions of Mr. Kefu to the contrary, sections 11 and 24(9) of the Act do not support the implication of a power to award costs in the Magistrate's preliminary inquiry jurisdiction. They are in Part II of the Act (which deals with the Court's summary jurisdiction in criminal cases) and are of no relevance to the exercise of the
Magistrate's Courts preliminary inquiry jurisdiction under Part III. Furthermore, whilst the words ―making such order against him as the justice of the case requires‖ in section 24(9) might arguably confer the power to award costs in summary cases, the use of the pronoun ―him‖ makes clear that such award could only be made against the defendant and not the prosecutor.
[23] The express powers conferred on a Magistrate at the conclusion of a preliminary inquiry are limited by section 32(4)(c) and (d) to committing the accused to the Supreme Court for trial or discharging him. There is, again, no reference to the Magistrate having the power to award costs either for or against the prosecutor (be they the Crown or a private individual) or the accused, or of any ancillary powers.
[24] The absence of any express power to award costs in committal proceedings is to be contrasted with the express powers conferred in civil cases (sections 60(1) and 66(f)), against the parent or guardian of a child between 7 and 14 years who is convicted of an offence in the Magistrate's Court's summary jurisdiction (section 29), and on the
Supreme Court on appeal from decisions of the Magistrate's Court (section 80(1)).
The implied exclusion rule
[25] Dr Harrison submits that the failure to expressly confer the power to award costs in the Magistrate's Court's criminal jurisdiction (except to the limited extent in section 29) must be seen as a deliberate omission giving rise to a ―powerful expressio unis est exclusio alterius interpretation, against the existence of a power to award costs in any committal hearing/preliminary inquiry‖. Rules of construction, such as the implied exclusion rule, are today regarded as mere guides to be handled warily.[4] I do not accept that the application of the implied exclusion rule completely excludes the prospect of implying a power to award costs. I do accept that as both a matter of common sense and statutory construction the specific conferral of power to award costs in other parts of the Act leads to a proper inference that such power has by implication been excluded in the Court's preliminary inquiry jurisdiction.
Relevant principles of common law and section 197
[26] Acts are to be read and applied consistently with the existing body of law.[5] It is a rule at common law that costs are entirely a creature of statute and absent a statutory power the Court has no power to award costs.[6] Whilst courts of equity always maintained the power to award costs, reflecting their flexible and discretionary jurisdiction, the common law courts were obliged to go back to a legislative enactment in order to arrive at their power (if any) of dealing with costs.[7] Related to this, the rule that the Crown neither receives nor pays costs in criminal cases has usually been explained on the basis that it was the Crown's prerogative not to pay costs to a subject and beneath his dignity to receive costs.[8] The rule may be explained on the simpler basis that in the absence of statute, there is simply no power to award costs. [9]
[27] I do not accept Mr. Stanton's argument that section 197 of the Criminal Offences Act (as amended in 2007) displaced the rules on costs in criminal cases, at least in respect of private prosecutions. The right to bring private prosecutions has been a long standing feature of Tongan law. That this is so can be seen from section 175 of the Criminal Offences Act, as it appeared in the 1929 Revised and Consolidated Laws of Tonga and section 188 of the Criminal Offences Act, as it appeared in the 1966 Revised and Consolidated Laws of Tonga.
[28] The 2007 amendment to section 197 cannot possibly mandate an implication that the Magistrate's Court has power to award costs in its preliminary inquiry jurisdiction. The section makes no reference to costs. The preliminary inquiry jurisdiction of the Magistrate's Court is prescribed in the Magistrate's Courts Act (not the Criminal Offences Act) and the procedures now followed were introduced only in 2012. I also agree with Dr Harrison that any power to award costs, if it exists, could only be fully reciprocal, which is not what Mr. Stanton argues for.
[29] Consistent with the common law, to which I have referred, the pattern in other jurisdictions is to address costs in legislation by specific powers. That is what would be expected had there been an intention to grant the Magistrate's Court the power to award costs in its preliminary inquiry jurisdiction. As noted earlier, Mr. Stanton referred me to many cases involving costs in criminal cases all dealing with specific statutory provisions allowing for the award of costs.
An implication is not necessary
[30] The Courts will imply powers where other powers contained in statute would be rendered ineffective without them.[10] There were no arguments presented to me that persuaded me that the implication of a power to award costs was ‗necessary' for the Magistrate to effectively exercise his preliminary inquiry jurisdiction. Mr. Stanton submitted that it ―simply defies credulity‖ that costs cannot be awarded against a private prosecutor upon the discharge of the defendant at a committal hearing stage, that it was ―a nonsense‖ for the appellant to submit that such power was neither appropriate nor necessary and ―patently obvious‖ that upon discharging the respondents in a case which was devoid of merit that the Magistrate should receive submissions and then award them their costs. Those submissions simply state a conclusion and so are unhelpful. A Magistrate who conducts an inquiry under section 32(4) has a limited suite of options available to him. They are limited to either committing the accused for trial or discharging him. I cannot see that these powers are rendered ineffective by the absence of a further power to award costs.
The preliminary inquiry procedure
[31] The absence of a power to award costs is consistent with the objects and procedures that apply to preliminary inquiries. The preliminary inquiry was undertaken according to the procedures introduced by section 9 of the Magistrate's Courts (Amendment) Act 2012 which as Scott CJ said in his judgment in AM 20 of 2013, at paragraph [9], was to replace the outmoded, cumbersome, costly and time wasting procedure that was previously in place. Features of the process are that the prosecutor must lodge statements and other documents relied upon five days before the hearing, no oral evidence is placed before the Court and no cross-examination takes place. It can be inferred
that the Legislative Assembly would not have foreseen that an accused would incur substantial costs at this stage of the criminal process requiring provision to be made for the awarding of costs.
The interests of justice
[32] I am very mindful of the submission made by both Mr. Stanton and Mr. Kefu that it is unjust that a party may bring an unsuccessful private prosecution, putting the accused to considerable cost and inconvenience, with no risk of an adverse costs order being made against them. The respondents understandably took steps, with the assistance of Counsel, to defend themselves against very serious criminal charges. However, the role of the Court is to interpret the Magistrate's Court Act according to its terms and by reference to relevant principles of statutory construction and law. In so far as it is thought that the legal meaning of a statute produces some injustice that is a matter for legislative reconsideration of the statute.
[33] Looking at the matter in a wider context, I do not consider that the interests of justice require that the Magistrate have the power to award costs on a preliminary inquiry. A successful accused has the right to recover wasted costs in an action for malicious prosecution, although I accept this will mean that he must incur more costs on an uncertain outcome. Perhaps more significantly, as I have noted the preliminary inquiry process is designed to minimise costs. Also, there is existing protection against vexatious prosecutions in the power that
the Attorney-General has to stay a private prosecution. There is also the Court's power to stay a proceeding if it is an abuse of process.
There is no implied statutory power to award costs
[34] Weighing the factors I have referred to, I have come to the clear view that the Magistrate had no statutory power (express or implied) to award costs against Mr. Pohiva.
THE COURT'S INHERENT POWERS
[35] As noted above, the respondents also argue that the Magistrate had the power to award costs under his inherent powers. I accept that the Magistrate's Court has implied power to prevent abuse of its processes and to develop procedures to facilitate its jurisdiction. Mr. Stanton referred me to Zaoui v Attorney-General,[11] Seimer v SolicitorGeneral[12] and also Moevao v Department of Labour[13]. I take no issue with the principles expressed in those cases.
[36] There have been cases where the Courts have awarded costs in reliance upon their inherent powers. In R v PuIoka[14] the Court of Appeal awarded costs under its inherent powers in respect of what it described as an competent' application for leave to appeal. There was no discussion of the relevant principles upon which the Court of Appeal relied. In Pringle v Secretary of State for India[15] the English Court of Appeal awarded costs upon staying a civil action. The Court described the claim as ―a fruitless and unjustifiable application made to the Court‖.[16] In The Guardian of West Ham Union v The Church Wardens etc St Matthew, Bethnal Green[17] the House of Lords held it had power to award costs in civil proceedings in circumstances where is was argued that there was no statutory power to do so. Lord Herschell considered such power was ‗assumed' in the relevant statute.[18] Lord MacNaughten considered that the House of Lords ―as the highest Court of Appeal, has and necessarily must have an inherent jurisdiction as regards costs.‖[19]
[37] Recent cases, including Seimer at paragraphs [113] and [114] upon which Mr. Stanton placed reliance in his written submissions, have made clear that there are limits on the exercise of the Court's inherent powers. The Court has only such powers as are necessary to enable it to act effectively. The Court's powers do not extend to further general public interest other than the due administration of justice. I do not consider that the Court has power to award costs as part of its inherent ancillary jurisdiction ―as it sees fit‖ which is what I understood Mr. Stanton was submitting to me.[20] That puts the position far too broadly. As a matter of principle, in circumstances where (as I have held) there is no express or implied statutory power to award costs, it is difficult to see how the Court's inherent power could extend so far, except as is necessary to prevent an abuse of the Court's processes.[21]
[38] The Magistrate discharged the respondents ―as the Prosecution has not been able to provide sufficient admissible evidence....to require these defendants to be committed to the Supreme Court.‖ [22] He did not do so on the basis that the prosecutions were an abuse of process and did not make any finding that Mr. Pohiva was acting in bad faith or for an ulterior purpose in commencing the prosecutions. Scott CJ dismissed Mr. Pohiva's appeal on the basis that taken at its highest the evidence presented was not sufficient that a jury properly directed could convict. Scott CJ said that Mr. Pohiva ―launched these prosecutions because of his genuine concern at the way these funds had been disbursed‖[23] and, in relation to his appeal, that his grounds were ―advanced in good faith‖24 albeit misconceived.
[39] That Mr. Pohiva, acting in good faith, failed to make out a sufficient case to put the respondents on trial does not amount to an abuse of process.
[40] I therefore find that the Magistrate had no inherent power to award costs against Mr. Pohiva.
THE RESULT
[41] The Magistrate had no express or implied statutory power to award costs in the preliminary inquiry proceedings under Part III of the Magistrate's Courts Act or, in the circumstances of this case, any inherent power to do so. The appeal is allowed and the decision of the Magistrate awarding the respondents costs is set aside.
[42] It would seem that the T$22,000, which Mr. Pohiva has paid into Court, should be paid out to him but, as I have not heard from Mr. Stanton on that matter, I direct that the respondents are to advise within seven days if they wish to object to the release of those funds.
Dr Harrison will have seven days to reply if objection is taken.
[43] As far as the costs of this appeal and CV 75 of 2014 are concerned the parties are to file memoranda as to costs if they cannot agree within 21 days.
O G Paulsen
NUKU'ALOFA: 22 JUNE 2015.
LORD CHIEF JUSTICE
[1] Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Byrnes v Barry [2004] ACTCA 24; Brynes v Barry and John Fairfax Pty Ltd [2003] ACTSC 84; Perkins v County Court of Victoria [2000] VSCA 171 and Ferguson v Reid [2007] SASC 445.
[2] Bennion “Statutory Interpretation” 2nd Ed at page 361.
[3] Which is subject to section 35 but this is not of significance for present purposes.
[4] Burrows and Carter “Statute Law in New Zealand” 4th Ed at 213 and 214.
[5] Bennion at 727-728 and Burrows and Carter at 543-549.
[6] Byrnes v Barry [2004] ACTCA 24 at para 60 per French J.
[7] Garnett v Bradley (1878) 3 App Cas 944,953-954 per Lord Hatherley.
[8] Dal Pont “Law of Costs” at page 806.
[9] Wright v Judge Keon-Cohen (1992) 77 A Crim R 67 at 68.
[10] DPP v Carey [1970] AC 1072, Bodden v Commissioner of Police of the Metropolis [1990] 2 WLR 76 referred to in Bennion (supra) at 368 and R v Kahu [1995] 2 NZLR 3 (CA).
[11] [2005] 1 NZLR 577.
[12] [2013] 3 NZLR 441.
[13] [1980] 1 NZLR 464.
[14] [2000] Tonga LR 335.
[15] [1888] 40 Ch.D 288.
[16] Ibid at 290 per Bowen LJ.
[17] [1896] AC 477.
[18] At 484.
[19] At 489.
[20] Paragraph 29 of respondents' submissions.
[21] Dal Pont at 6.8 and 6.11 at 193-196.
[22] At page 46 of the Appeal Booklet in Am 20 of 2103.
[23] Final unnumbered paragraph of ruling of 17 January 2014. 24 At paragraph [27].
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